eviction

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This article or section needs to be revised: The article mixes the legal term eviction with the compulsory enforcement of the same in the foreclosure, the eviction. Eviction is therefore not a pleonasm. Eviction is also not to be equated with the surrender of the (usually previously evacuated) thing.
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Public protest against evictions in Ibiza Town

The eviction (also: eviction enforcement or surrender enforcement ) is a measure of compulsory enforcement in order to obtain the surrender of an immovable property . According to § 885 Abs. 1 ZPO the bailiff has to put the debtor out of possession and instruct the creditor in the possession.

An object, such as a piece of land or an apartment, is evicted, a subject is evicted or expelled, i. H. the debtor / tenant. The English term eviction also includes the re-entry of the landlord (creditor) into his original rights.

requirements

An enforcement title , such as an eviction order ( Section 704 ZPO) , is required as a general prerequisite for enforcement . The termination of a rental agreement due to loss of rent ( default of payment ) by the tenant with a subsequent eviction action by the landlord ( Section 940a (3) ZPO), on which the tenant is sentenced to surrender the apartment in question, is practically frequent . The eviction can also be based on a house occupation or the settlement of a non-performing loan by way of the foreclosure sale of a piece of property and subsequent eviction of the insolvent borrower .

Since the tenancy law reform in 2013 , eviction beyond the cases already mentioned in Section 940a (1) ZPO has been permitted in certain other cases on the basis of an eviction order . If the eviction enforcement fails due to a third person, up to then unknown to the landlord, who asserts a right of ownership to the apartment, but against whom the eviction order is not directed, a further title against this third person can quickly be granted by way of temporary legal protection according to § 940a para 2 ZPO can be obtained. In addition, the court may order the evacuation by means of an interim injunction if the tenant does not deposit a certain sum of money according to § 283a ZPO ( § 940a Abs. 3 ZPO) for the rent claims that become due after lis pendens .

The evacuation of the apartment without the consent of the tenant and without a previously obtained eviction title (so-called cold eviction ) represents a prohibited self-power of the landlord and a violation of the tenant's right of ownership. It can oblige the landlord to pay damages and compensation for pain and suffering to the tenant.

The bailiff commissioned with the eviction must , if necessary, observe the evacuation period granted to the tenant in the eviction order ( § 721 , § 751 ZPO).

Before setting an evacuation date, the bailiff generally makes the execution of the eviction order dependent on the payment of an advance payment by the landlord, which covers the costs that are likely to arise ( Section 4 Bailiff Costs Act).

There must be at least three weeks between the date of delivery of the eviction date to the debtor (tenant / owner) and the eviction date itself (Section 180 No. 2 Paragraph 2 GVGA), so that the debtor can, if necessary, submit an application for protection against enforcement in accordance with § 765a ZPO and can at least bring about the temporary suspension of the foreclosure. For this purpose, the eviction would have to mean "with full appreciation of the creditor's need for protection because of very special circumstances a hardship that is incompatible with good morals". In making its decision, the enforcement court must also take into account the broadcasting effect of the basic rights to life and physical integrity guaranteed to the debtor in compulsory enforcement under Article 2 (2) sentence 1 of the Basic Law.

Impending homelessness of the debtor does not prevent foreclosure. If, however, it is to be expected that the eviction debtor will become homeless as a result of the eviction, the bailiff will notify the administrative authority responsible for the accommodation of the homeless of the eviction date. If the latter uses the previous rooms of the debtor for his / her temporary accommodation at its own expense, in particular in accordance with SGB ​​II or SGB ​​XII by assuming the costs of accommodation and heating , eviction does not take place (Section 181 No. 3 and 4 GVGA).

Since the bailiff has the movable property of the debtor according to § 885 para. 2 ZPO has to remove, a freight forwarder will also be called in for the evacuation if the debtor's property cannot be handed over. The bailiff is liable to the debtor for the proper and professional dismantling and removal of the furniture and also for a corresponding storage, even if the landlord offers to make workers and premises available for the storage of the goods to be cleared.

execution

The eviction is carried out by the bailiff at the request of a creditor if the debtor does not voluntarily surrender the apartment or property by the set eviction date. If necessary, the bailiff can apply direct coercion , e.g. B. Break open and exchange locks or force the debtor out of the apartment with the help of the police ( Section 758 ZPO).

The debtor is removed from the possession of the apartment to be vacated or the business premises to be vacated by the bailiff removing all evacuation goods from the evacuation property and instructing the obligee in possession, in particular by handing over the keys. The obligee can thus exercise the detained possession unhindered.

The bailiff has to keep the evacuation property for one month. Within this period, the debtor can demand the attachable items against reimbursement of the clearance costs, non-attachable items at any time. After the deadline, the remaining evacuation property will be auctioned publicly like a pledge and any proceeds will be deposited in favor of the obligee ( Section 885 Paragraphs 2 to 5 ZPO). Objects that cannot be used are destroyed.

costs

The not insignificant costs of eviction such as expenses for a shipping company for the purpose of transporting or disposing of the furniture, legal fees and the bailiff's fees are initially to be advanced by the creditor , but ultimately the debtor is charged ( § 788 ZPO). In principle, it is up to the debtor to find a replacement apartment in good time. If necessary, he will be assigned to a homeless shelter by the city or municipality .

Limited Enforcement Order

As of May 1, 2013, the previous case law on the so-called Berlin evacuation was legally fixed in Section 885a ZPO.

In the case of the enforcement order restricted by reference to the landlord's lien , the bailiff (only) exposes the debtor and the creditor into possession, the expensive removal of the evacuation property by the bailiff does not take place. The ownership of the the evidence documented Räumungsgut rather is transferred from the debtor to the creditor and can remain in the apartment. Safekeeping and realization is left to the obligee. Ultimately, the obligee can set off his outstanding tenancy law claims such as arrears in rents when selling the evacuated property against the debtor's claim to surrender of the proceeds and thereby extinguish the debtor's claim to surrender the evacuated property.

literature

Web links

Commons : Eviction  - collection of pictures, videos and audio files
Wiktionary: eviction  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ MietRÄndG, Federal Law Gazette I 2013, p. 434
  2. ↑ Act on the energetic modernization of rented living space and on the simplified enforcement of eviction titles (Tenancy Law Amendment Act - MietRÄndG) Basic information about the process, DIP XVII / 391
  3. ↑ BR-Drucksache 313/12 from May 25, 2012. Draft of a law on the energetic modernization of rented living space and on the simplified enforcement of eviction titles (Tenancy Law Amendment Act - MietRÄndG), p. 47 ff.
  4. ↑ Axel Wetekamp: Theme week: Tenancy law reform 2013 - In the fight against Germany's nomads LTO , March 21, 2013
  5. ↑ cf. BGH, judgment of 14 July 2010 - VIII ZR 45/09, no. 10
  6. ↑ BGH, judgment of July 14, 2010 - VIII ZR 45/09
  7. ↑ Dominik Schüller: About cold evictions and why Saturday is not Saturday is LTO , July 16, 2010
  8. ^ AG Reinbek, judgment of May 20, 2008 - 5 C 624/06
  9. ↑ Business instructions for bailiffs (GVGA)
  10. ↑ Enforcement protection application, special case eviction protection application Service Portal Berlin, accessed on April 1, 2017
  11. ↑ BVerfG, decision of August 16, 2001 - 1 BvR 1002/01 para. 18th
  12. ↑ Principles of the police and regulatory law accommodation of (involuntarily) homeless people with special consideration of homeless Union citizens Legal opinion on the occasion of the federal conference of BAG Homeless Aid e. V. in Berlin from November 9th - 11th, 2015 “Solidarity instead of competition - act decisively against homelessness and poverty” by BAG Homeless Aid e. V., accessed April 1, 2017
  13. ^ AG Frankfurt a. Main, decision of December 1, 2003 - 33 M 59 / 03-28
  14. ^ BGH, decision of November 17, 2005 - I ZB 45/05
  15. ↑ Landlord's lien: BGH facilitates eviction enforcement IWW Institute, April 1, 2006
  16. ↑ BR-Drucksache 313/12 of 25 May 2012. Draft of a law on the energetic modernization of rented living space and on the simplified enforcement of eviction titles (Tenancy Law Amendment Act - MietRÄndG), p. 43 ff.
  17. ↑ Arnold Lehmann-Richter: Enforcement of tenancy law claims according to the new law ( memento of the original from October 20, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 2013, p. 13: 885a ZPO: Schematic overview @1@ 2Template: Webachiv / IABot / db.mietgerichtstag.de